|If you would like to leave a public comment for the U.S. Department of Labor to review, go to regulations.gov, or find the page directly at gaybe.am/AE. All comments are due before Feb. 5 at 11:59 p.m.|
In a bustling restaurant mid-shift, a server’s main focus is to get orders filled, food served and checks resolved. But in the middle of that, it’s also not uncommon to hear a phrase like, “Hey, baby. Would you get me a cup of coffee?” Because restaurant workers often have low-paying jobs and rely on tips, rarely will they have an option to do anything else but continue filling that order, though they’d most likely want to respond with something along the lines of, “No problem, jackass.”
That specific scenario is part of a video filmed in Michigan by media site Attn:, titled “This is what servers would say if they didn’t rely on tips.” The video features actresses Jane Fonda and Lily Tomlin undergoing sexual harassment as restaurant wait staff, and firing back verbal and sometimes physical retorts.
“Jane Fonda and Lily Tomlin chose to stand with us to promote One Fair Wage, which is raising the minimum wage to $12 and eliminating the lower wage for tipped workers,” Said Saru Jayaraman, co-founder of the Restaurant Opportunities Centers United union. “There’s a whole campaign to put that on the ballot and pass that in November 2018 in Michigan.”
In fact, ROC found in a 2014 study called “The Glass Ceiling,” that 37 percent of “all sexual harassment claims to the Equal Employment Opportunity Commission (EEOC) come from the restaurant industry.” And although sexual harassment is fairly difficult to track, labor economist and former waitress Dr. Sylvia A. Allegretto said that it’s definitely an issue especially for jobs with low benefits.
“This is a problem that’s deeply ingrained in our culture to begin with, and then certainly embedded in something that all working women have to deal with,” Allegretto said.
But as huge and as complicated as ROC’s joint campaign to end sexual harassment is, it became even more tangled on Dec. 4 2017. That’s when the U.S. Department of Labor proposed a new rule that could allow employers to pool and take their employees’ tips, so long as they pay minimum wage. According to Allegretto, this would only exacerbate difficulties like sexual harassment in the workplace.
“Some people actually do very well on tips, but they’re making it legal to make sure that all of these jobs are low-paying jobs. This is really important that (these jobs) typically have very low benefits if benefits at all,” Allegretto said. “These are jobs that don’t even get time off when you’re sick, no vacation pay, no retirement pay. I doubt if all of those benefits are suddenly going to appear and make these jobs a little bit better.”
If bosses are given freedom to decide what can happen with employee tips, they could decide to share tips with back of house workers. However, they could also choose to pocket the money. Gage Domke has held several positions as a tipped worker. He was also a former dishwasher at a Lansing brewpub that was investigated for illegally pooling tips before the proposed rule. He said that he wouldn’t be surprised if many business owners began taking all tips.
“Maybe not family restaurants where the ‘Mom and Pop’ are there the whole time, but from what I’ve seen, when people who make money are given the opportunity to make more money, they take that opportunity,” Domke said.
Currently, Michigan’s minimum hourly wage rate is $9.25, but only $3.52 for tipped workers assuming that hourly employee tips average at least $5.73. In order to “cash in” on this potentially new law, employers might give their servers a “raise” to minimum wage, only to take all of their potential extra income. For servers like Marcelle Wallace, that’s a difficult reality to face.
“I’ve been a server for the past three years and tips supplement all of my income. If it came to be that I would just be getting paid minimum wage, I am better off working at McDonald’s,” Wallace said. “That’s so scary to think about working 40 hours a week, I can usually make about $1,000 to $1,300. That just shows you how much of a difference it would be.”
Since visiting Michigan in September 2017 to campaign for a higher minimum wage, both Fonda and Tomlin have made a series of similar tongue-in-cheek videos in an effort to raise awareness about the disproportionate levels of harassment that tipped workers must face for their low wages and lack of benefits, along with media about the importance of tips to supplement income. Jayaraman said that the well-known duo was a perfect pick for the campaign, particularly Tomlin.
“She’s not just a Michigan native, she’s a former waitress herself, so she’s got some experience,” Jayaraman said. “She shared a lot of that when she was with us in Michigan.”
ROC is now making sure to include the issue of employer tip pooling on a ballot measure, in addition to their One Fair Wage campaign.
“So, this made the need for a ballot measure much more important than before, because now, federally, tips will be the property of employers, but in Michigan, if our ballot measure passes, we’re completely protected from that rule,” Jayaraman said.
Jayaraman now encourages supporters of the measure to publicly comment on the Department of Labor’s Tip Regulations under the Fair Labor Standards Act on regulations.gov. Though the original commentary period was scheduled until Jan. 4, 2018 it has been extended to Feb. 5, 2018. So far, over 100,000 people have commented on the proposed rule.
“Trump is unlikely to listen even if you submit hundreds of thousands of comments, (but) we have to try,” said Jayaraman. “And if he doesn’t listen, then it’s really the state ballot measure that will overcome that federal law. So, we need people to come out and support and move this ballot measure to not just raise the minimum wage from $3.52 to $12, but also ensure that tips are the property of workers in Michigan.”
The U.S. Department of Labor did not respond to a request for comment before the publication of this story.